Issa releases scathing report on Lerner

posted at 10:41 am on March 12, 2014 by Ed Morrissey

One of the enduring mysteries of the IRS scandal — at least if one listens to MSNBC and other media outlets who think of it as a “phony scandal” — is why Lois Lerner took the Fifth twice when called to testify to it. People invoke the Fifth Amendment to keep from incriminating themselves through their own testimony, which is a basic human right recognized by the Constitution. The use of it by a high-ranking government official when questioned by Congress about activities conducted during official duties does, however, strongly suggest that something illegal was going on, even if the invocation of the right itself cannot be used as evidence in trial. After all, if the scandal has no basis in fact and the IRS was just doing its job, then Lerner should have no problem testifying on how she performed her duties — information which Congress is entitled to demand.

The California Republican and chairman of the House Oversight and Government Reform Committee released a 141-page report saying Lerner “led efforts to scrutinize conservative groups while working to maintain a veneer of objective enforcement.” He also accused her of obstructing the oversight committee’s investigation and misleading Congress. …

Issa’s report said Lerner was trying to undermine the Supreme Court’s Citizens United decision.

“The Supreme Court dealt a huge blow, overturning a 100-year-old precedent that basically corporations couldn’t give directly to political campaigns, and everyone is up in arms because they don’t like it,” Lerner said at a Duke University forum in 2010. “The Federal Election Commission can’t do anything about it. They want the IRS to fix it.”

Issa said Lerner made “false or misleading statements” to the panel by denying in February 2012 that the IRS changed its screening criteria and by saying the agency’s review methods did not exceed its usual standards.

The IG’s audit found that Ler­ner ordered her division to alter the screening criteria in June 2011 because they focused too much on groups’ policy positions. It also determined that the agency overreached in seeking donor information from nonprofit groups.

Other IRS officials told the panel they could not remember such previous donor requests.

The report itself pulls no punches about Lerner’s activities:

When Congress asked Lerner about a shift in criteria, she flatly denied it along with allegations about disparate treatment.15 Even as targeting continued, Lerner engaged in a surreptitious discussion about an “off-plan” effort to restrict the right of existing 501(c)(4) applicants to participate in the political process through new regulations made outside established protocols for disclosing new regulatory action.16 E-mails obtained by the Committee show she and other seemingly like-minded IRS employees even discussed how, if an aggrieved Tea Party applicant were to file suit, the IRS might get the chance to showcase the scrutiny it had applied to conservative applicants.17 IRS officials seemed to envision a potential lawsuit as an expedient vehicle for bypassing federal laws that protect the anonymity of applicants denied tax exempt status.18 Lerner surmised that Tea Party groups would indeed opt for litigation because, in her mind, they were “itching for a Constitutional challenge.”19

Through e-mails, documents, and the testimony of other IRS officials, the Committee has learned a great deal about Lois Lerner’s role in the IRS targeting scandal since the Committee first issued a subpoena for her testimony. She was keenly aware of acute political pressure to crack down on conservative-leaning organizations. Not only did she seek to convey her agreement with this sentiment publicly, she went so far as to engage in a wholly inappropriate effort to circumvent federal prohibitions in order to publicize her efforts to crack down on a particular Tea Party applicant. She created unprecedented roadblocks for Tea Party organizations, worked surreptitiously to advance new Obama Administration regulations that curtail the activities of existing 501(c)(4) organizations – all the while attempting to maintain an appearance that her efforts did not appear, in her own words, “per se political.”

Lerner’s testimony remains critical to the Committee’s investigation. E-mails dated shortly before the public disclosure of the targeting scandal show Lerner engaging with higher ranking officials behind the scenes in an attempt to spin the imminent release of the TIGTA report.20 Documents and testimony provided by the IRS point to her as the instigator of the IRS’s efforts to crack down on 501(c)(4) organizations and the singularly most relevant official in the IRS targeting scandal. Her unwillingness to testify deprives Congress the opportunity to have her explain her conduct, hear her response to personal criticisms levied by her IRS coworkers, and provide vital context regarding the actions of other IRS officials. In a recent interview, President Obama broadly asserted that there is not even a “smidgeon of corruption” in the IRS targeting scandal.21

If this is true, Lois Lerner should be willing to return to Congress to testify about her actions. The public needs a full accounting of what occurred and who was involved. Through its investigation, the Committee seeks to ensure that government officials are never in a position to abuse the public trust by depriving Americans of their Constitutional right to participate in our democracy, regardless of their political beliefs. This is the only way to restore confidence in the IRS.

John McKinnon writes at the Wall Street Journal that this looks like a proposal for a contempt charge against Lerner. It also notes that Lerner took a particular interest in a Democrat bête noire:

The report also appears aimed at building a case for seeking to hold Ms. Lerner in contempt of Congress. She has declined to answer congressional questions, citing her Fifth Amendment privilege against self-incrimination.

Newly disclosed emails show Ms. Lerner also took an interest in the application for tax-exempt status by Crossroads GPS, a big conservative player in the 2012 election that was co-founded by Karl Rove.

“Can you please send me a copy of the Crossroads [GPS] application? Lois wants Judy to take a look at it so she can summarize the issues for Lois,” says an IRS email from mid-2011 that is quoted in the report.

Paul Mirengoff wrote yesterday that the report shows that “[t]here can be little doubt that if Lerner were to answer Committee questions under oath, she would incriminate herself. And if she answered truthfully, she would also incriminate the administration she faithfully served.” Meanwhile, Scott Johnson points out a rather predictable gap in the coverage of the report. Be sure to catch up with Power Line’s better coverage.

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Senate rules specifically authorize the Senate Legal Counsel to file civil action against any private individual found in contempt. If the Senate is Republican after 2014, and some kindly committee wishes to take up the IRS abuses, Lerner (as a retired and now private citizen) could face this, too.

The entire monograph, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure by Todd Garvey, Legislative Attorney, and Alissa M. Dolan, Legislative Attorney, August 17, 2012, CRS Report for Congress, Prepared for Members and Committees of Congress, Congressional Research Service, 7-5700 http://www.crs.gov RL34097, worth a look.

Do you or anyone really think Lerner is so evil that immunity would be letting some serious criminal avoid punishment for their dastardly deeds?
verbaluce on March 12, 2014 at 11:11 AM

Yes. And if you don’t shudder at the use of a government institution with those kind of powers being used for partisan attacks then you are crazy. If this was the other way around you would not be so cavalier.

As evidenced by three recent high-profile terminations at Merrill Lynch, there’s no Fifth Amendment protection in the workplace, the Chronicle said. Two high-ranking employees were fired after refusing to cooperate with federal investigators looking into deals with Houston-based Enron Corp.

So, it seems to be up to the employer. In Lerner’s case that is the IRS which will do nothing. Thus legislation has been introduced:

I didn’t know that they could go around Holder like this. What is this process called? Where may I learn more about it?

Kaffa on March 12, 2014 at 11:58 AM

For (a lot more) more historical background, and a very interesting separation-of-powers argument that Congress (House or Senate) should be enforcing its own contempt resolutions and not referring its findings to the judiciary, see:

If Congress may use its inherent contempt power to hold an executive branch officer in contempt, and if defiance of a subpoena may properly be treated as contempt, then how should Congress proceed against that official? We have already seen that criminal proceedings are unlikely to be available. Should Congress file a civil suit, or should it use other means? The question is one of institutional power: executive branch officials are likely to make a defense to contempt charges— for example, that their refusal to produce documents should be excused because it was pursuant to a proper invocation of executive privilege. Who, then, is the final judge of whether the invocation of executive privilege was proper: the house of Congress, or the courts?

Until the late twentieth century, the answer was clear: the legislative house is the final judge of legislative contempts. Certainly, neither the houses of Parliament nor the British monarchs ever considered submitting their disputes to the courts. The same was true of the colonial and early state legislatures, and, indeed, of the houses of Congress in their disputes with Jackson, Tyler, Fry, and Seward. The reason is both very simple and very important: these were disputes over the relative balance of executive and legislative power. Each side was con- tending for more power vis-à-vis the other. To invoke the aid of a third party is to admit weakness—to admit that one’s own authority is in- sufficient to get what one wants. This is why it is so important to view the disputes between executive authority and legislative contempt powers in their broader historical and political context: these disputes are, at their heart, about the basic contours of the constitutional divi- sion of powers. pp. 1146-1147

If for no other reason than to reassert its rights, the House ought to indict, try, convict and sentence Lerner. If Captain EO can push the boundaries of executive authority, why not the House? Give Chief Justice Roberts something to do.

Do you think Issa should be immune from Lerner calling him to testify at a politically motivated committee hearing?

verbaluce on March 12, 2014 at 12:30 PM

Your saying that this is a politically motivated committee hearing disregards the facts presented in the report. Do you contend that those facts are untrue? Or that the conclusions being drawn are flawed? If the latter, why do you say so?

If for no other reason than to reassert its rights, the House ought to indict, try, convict and sentence Lerner. If Captain EO can push the boundaries of executive authority, why not the House? Give Chief Justice Roberts something to do.

Verbaluce, if the shoe were on the other foot, and this was a Democrat-lead committee investigating a Republican nominee, would you say the same thing? Come on.

Throat Wobbler Mangrove on March 12, 2014 at 11:22 AM

Same as this?

Sure.

What examples do you have that you feel compare?

verbaloon on March 12, 2014 at 12:19 PM

LOL! Insulting our intelligence again, I see.

When Oliver North and John Poindexter took the 5th before Congress, your Democrats immediately pronounced them Guilty, and demanded that they both be taken out back and shot.

In 1989, Charles Keating took the 5th before Congress. Again, your Democrats immediately pronounced him Guilty, and demanded that he be taken out back and shot.

And in 2007, Monica Goodling, an aide to then-Attorney General Alberto Gonzales, who served under George W. Bush, invoked her rights and refused to testify before the Senate Judiciary Committee in 2007 about the administration’s firing of eight U.S. attorneys. Again, your Democrats immediately pronounced her Guilty, and demanded that she be taken out back and shot.

Do you think Issa should be immune from Lerner calling him to testify at a politically motivated committee hearing?

verbaluce on March 12, 2014 at 12:30 PM

Nice dodge, but unelected public servants do not have the power to force elected congressmen to testify. And by the way, which party has been harmed by Ms Lerner and her Tea Party political witch hunt.

Do you think Issa should be immune from Lerner calling him to testify at a politically motivated committee hearing?

verbaluce on March 12, 2014 at 12:30 PM

Nice dodge, but unelected public servants do not have the power to force elected congressmen to testify. And by the way, which party has been harmed by Ms Lerner and her Tea Party political witch hunt.

If for no other reason than to reassert its rights, the House ought to indict, try, convict and sentence Lerner. If Captain EO can push the boundaries of executive authority, why not the House? Give Chief Justice Roberts something to do.

She can take the 5th and avoid being forced to testify herself, but that doesn’t make all the other evidence go away. There’s enough to show that she lied to Congress, which is enough to get jail time.

Her taking the 5th impedes the investigation, but it won’t really protect her. There’s just too much evidence against her. So the most likely reason she’s taking the 5th is to protect someone else.

When Oliver North and John Poindexter took the 5th before Congress, your Democrats immediately pronounced them Guilty, and demanded that they both be taken out back and shot.

In 1989, Charles Keating took the 5th before Congress. Again, your Democrats immediately pronounced him Guilty, and demanded that he be taken out back and shot.

And in 2007, Monica Goodling, an aide to then-Attorney General Alberto Gonzales, who served under George W. Bush, invoked her rights and refused to testify before the Senate Judiciary Committee in 2007 about the administration’s firing of eight U.S. attorneys. Again, your Democrats immediately pronounced her Guilty, and demanded that she be taken out back and shot.

Keep shoveling!

Del Dolemonte on March 12, 2014 at 12:45 PM

‘your Democrats immediately pronounced her Guilty, and demanded that she be taken out back and shot.’ -
Ha..and I’m the one shoveling.

Monica Goodling WAS granted immunity – and then in her testimony admitted to much of what was suspected…that essentially she was a Republican hack. (She’s now married to the founder of Redstate dot com, interestingly enough.)

So why not grant Lerner immunity to see if she admits to being a Dem hack…or worse?

Poindexter and North were both convicted of serious charges.
Later, those convictions were overturned based on some immunity they’d been granted. (ACLU to the rescue there – ha.)

Anyway…again – why not grant Lerner immunity?
The Dems did just that in the cases you cite…so you’re the one being hypocritical here.

Also – do you object to Poindexter’s & North’s hubris and proven law breaking? I mean, you must just find their actions reprehensible…right?

Also – do you object to Poindexter’s & North’s hubris and proven law breaking? I mean, you must just find their actions reprehensible…right?

verbaluce on March 12, 2014 at 3:41 PM

Tell us how you vigorously supported North and Poindexter’s pleading of the 5th at the time, and we’ll stop laughing at you.

And what “proof” was there that Poindexter broke the law? Take your time, and please don’t cite another gaming website!

Del Dolemonte on March 12, 2014 at 4:50 PM

How about you stop deflecting so much.
“Gaming site!’…did you even read the piece? Do you have nothing to offer in response?

I fully support North & Poindexter taking the 5th. I don’t have the same selective respect for rights that you do.

(And I’m not gonna got OT into an Iran-Contra thread with you. Maybe Ed or Allah will offer a retro post someday. In the meantime, go to your public library and read up on the charges and the convictions.)

Meanwhile…why do you think Lerner should not be granted immunity?
Why do you object to her exercising her rights?

And how frustrated are you that Issa has nothing to offer but a rant?
A kindred spirit, it seems. Ha.

(And I’m not gonna got OT into an Iran-Contra thread with you. Maybe Ed or Allah will offer a retro post someday. In the meantime, go to your public library and read up on the charges and the convictions.)

verbaloon on March 12, 2014 at 5:18 PM

Already have-Poindexter’s convictions were based on statements he made under immunity.

Thanks for admitting Poindexter was in fact not proven to have broken any laws.

Because she’s doing such a great job of hanging herself without it. The contradictions between Lerner’s leaked emails and eyewitness testimony and Lerner’s voluntary testimony to Issa’s committee and staff in February, April and May of 2103 were enough to produce yesterday’s staff report, “Lois Lerner’s Involvement in the IRS Targeting of Tax-Exempt Organizations,” which lists at least four Lerner lies before the committee.

Why consider immunity for someone who’s still contradicting her own testimony? Let her hang herself a few more times first. And then– who knows?– maybe her testimony will no longer matter anyway.

And how frustrated are you that Issa has nothing to offer but a rant?

What you ignorantly describe as a rant is a pretty solid basis for the Committee to pass a resolution of contempt against Lerner:

On the morning of June 28, 2013, the Committee convened a business meeting to consider a resolution finding that Lois Lerner waived her Fifth Amendment privilege against self-incrimination when she made a voluntary opening statement at the Committee’s May 22, 2013, hearing entitled “The IRS: Targeting Americans for Their Political Beliefs.”77 After lengthy debate, the Committee approved the resolution by a vote of 22 ayes to 17 nays.…

Despite the fact that Lerner was compelled by a duly issued subpoena and had been warned by Chairman Issa of the possibility of contempt proceedings, and despite the Committee having previously voted that she waived her Fifth Amendment privilege, Lerner continued to assert her Fifth Amendment privilege, and refused to answer any questions posed by Members of the Committee. Chairman Issa subsequently adjourned the hearing and excused Lerner from the hearing room. At that point, it was clear Lerner would not comply with the Committee’s subpoena for testimony…

Following Lerner’s appearance before the Committee on March 5, 2014, her lawyer revealed during a press conference that she had sat for an interview with Department of Justice prosecutors and TIGTA staff within the past six months. According to the lawyer, the interview was unconditional and not under oath, and prosecutors did not grant her immunity. This interview weakens the credibility of her assertion of the Fifth Amendment privilege before the Committee. More broadly, it calls into question the basis for the assertion in the first place., pp. 14-16 of the committee report

Issa’s going to offer a resolution which is going to lead to Lerner being held in contempt by the House. The ranting has just begun– but not by Issa.

The committee to which the IRS agreed on March 10th to release Lois Lerner’s emails is Camp’s House Ways and Means Committee.

Two committees. Two separate investigations of Lerner and the IRS. I imagine they’ll trade notes before either considers immunity for Lerner. And after considering all the ways she might continue to perjure herself in testimony if they do, thereby nullifying her immunity.

The use of it by a high-ranking government official when questioned by Congress about activities conducted during official duties does, however, strongly suggest that something illegal was going on, even if the invocation of the right itself cannot be used as evidence in trial. After all, if the scandal has no basis in fact and the IRS was just doing its job, then Lerner should have no problem testifying on how she performed her duties — information which Congress is entitled to demand.

This same argument could be used against any defendant who avails them-self of the 5th: which is why it’s invocation is, righty, barred as evidence of guilt.

Issa’s burden was to prove his case. It would seem he’s more than overcome that burden.

She has no idea what charges she faces – only that Issa is gunning for her.

verbaluce on March 12, 2014 at 11:42 AM

Perjury at least. The problem with granting her immunity is she is probably the top of the ladder of those that can be convicted. She’ll never flip on Obama, and I can’t imagine he left an e-mail trail-that would be beneath him.

You don’t give immunity to the kingpin. It makes no sense. If they give Lerner immunity, who would be punished for the crimes her testimony would reveal?

You’re 100% right. She was hired by Obama’s team because they knew she was stupid enough to aggressively break the law. They simply hired here and said, “Please use the power of IRS to do what you were previously doing at FEC.”

Your saying that this is a politically motivated committee hearing disregards the facts presented in the report. Do you contend that those facts are untrue? Or that the conclusions being drawn are flawed? If the latter, why do you say so?

She has no idea what charges she faces – only that Issa is gunning for her. She could reveal that she deleted emails, and regardless of the reason be charged with destroying evidence. etc etc etc

verbaluce on March 12, 2014 at 11:42 AM

Well, this is complete crap. A list of specific and detailed questions has already been released. We already know exactly what information he wants from her, and why. The idea that she’s going to be thrown in jail for taking sick days is exactly the kind of hyperbolic theater you claim to disdain, and contrary to the facts at hand.

Well, this is complete crap. A list of specific and detailed questions has already been released. We already know exactly what information he wants from her, and why.

The Schaef on March 13, 2014 at 9:30 AM

I’m not entirely sure that verbaluce understands that Lerner isn’t facing any charges– yet. (And if she continues on her present course, she potentially faces only one: contempt of Congress.) Or perhaps she does, but choses to obscure the issue with complete crap.

What Lerner is facing, as Schaef notes, are a lot of specific and detailed questions, which take up an entire section of the Oversight Committee’s staff report: “Lerner’s Testimony Is Critical to the Committee’s Investigation,” (section III, pp. 16-46), which she and her attorneys already know. But just for the fun of it, here’s the report’s list of areas on which Lerner has been requested to testify:

Questions, lots of questions. Which she apparently had no problem answering at DOJ. So much for the Fifth.

Following Lerner’s appearance before the Committee on March 5, 2014, her lawyer revealed during a press conference that she had sat for an interview with Department of Justice prosecutors and TIGTA staff within the past six months. According to the lawyer, the interview was unconditional and not under oath, and prosecutors did not grant her immunity. This interview weakens the credibility of her assertion of the Fifth Amendment privilege before the Committee. More broadly, it calls into question the basis for the assertion in the first place. Report, p.16

Lerner’s conduct, like that of many of <0's bureaucratic cadres, looks like malfeasance, extortion or fraud. Isn't that prosecutable in state courts? Wouldn't the states where her and others' conduct impacted citizens have jurisdiction? If a fed commits murder in Arkansas, he/she can be prosecuted in Arkansas, right?

So basically, leave Mr. Sternly Worded Letter Issa in his dusty DC dust and lets get real victims to go to their local DAs to file charges. Issue some warrants. Make some arrests. Put these scum in state general populations. See how long it takes for them to break and rat out their handlers. Minutes would be my guess.

If anyone out there really knows something about these issues, I'd love to find out more.